< Things tend apace to coalition among us.'1 A violent attack of gout at last restored the troubled nerves of Chatham. In September 1769 he appeared unexpectedly at the King's levee; and when Parliament met in the following January, he took his place among the peers, and with an eloquence as powerful as that of his early days he denounced the unconstitutional measure that had taken place, and endeavoured to lead the House of Lords to the rescue of the constitution.

The debates that took place during several years on the Middlesex election brought into clear relief the conflicting doctrines about the relations between members and their constituencies, and, notwithstanding the great length to which they were protracted, the really essential arguments may be condensed in a small space. Blackstone, who was a member of the House, was put forward to defend the Government. He maintained that while a general incapacity to sit in the House of Commons can only be created by Act of Parliament, an incapacity limited to a single Parliament may be created by the House of Commons alone. This, it was said, is involved in the power of expulsion which it was admitted that the House possessed, and which without this addition would be absolutely nugatory, and it was established by the case of Walpole, who was expelled for alleged corruption, re-elected, and then declared incapable of sitting in that Parliament. It is remarkable that while Walpole and his friends complained bitterly that this expulsion was due to a purely factious combination, there is not the smallest reason to believe that they ever questioned the doctrine that it incapacitated the expelled member from sitting till after the dissolution. If indeed that doctrine were discarded, the right of expulsion would only expose the House to perpetual degradation and insult, for a large number of the members were as completely masters of their boroughs as of their estates, and they might, therefore, safely set the House at defiance. Several precedents, more or less applicable, might be discovered in the stormy period between 1642 and 1660, but the case of Walpole was the one undoubted instance since the Revolution of an expelled member being at once re

1 Chatham Correspondence, iii. 358.

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elected, and Walpole was pronounced, on account of his expulsion, incapable of sitting in that Parliament.'

The Opposition, on the other hand, maintained that to be eligible as member of Parliament was the common right of all British subjects; that incapacities annulling, suspending, or abridging this common right can only be created by Act of Parliament; that, as a matter of fact, they had been so created, for the law enumerated and defined the several kinds of incapacity, and that it was completely beyond the competence of one branch of the Legislature by its sole action to change the law. Sir Edward Coke and other authorities had, it is true, laid down that as every court of justice has laws and customs for its direction, so there is a lex et consuetudo parliamenti which must be gathered out of the records and precedents of the two Houses and which forms part of the unwritten law of the land. But this law and custom of Parliament' can only exist when, in the absence of any provision of the statute law, it is possible to point to a long, uniform, and unchallenged series of parliamentary precedents. Were it otherwise the consequences would be of the most dangerous description, for it is certain that in the course of its long and turbulent history each House had often and in many directions transgressed its just limits. It was surely absurd to go to the anarchy of the Great Rebellion for legal precedents, and the case of Walpole could be of little real service to the ministry. The resolution incapacitating him alleged that having been expelled this House for a high breach of trust in the execution of his office and notorious corruption when Secretary of War, he was incapable of being re-elected a member to serve in the present

In 1698 Mr. Wollaston being a collector of duties was expelled' from the House in obedience to a law which had recently disqualified those who held that office from sitting, and having given up the office he was re-elected and allowed to sit. The partisans of Wilkes maintained that this was a valid precedent, while his opponents thought the word 'expelled' was in this case improperly used by the Commons. The case was at least not one of penal expulsion. See a long discussion of it in A Fair Trial of the Important Question,' Almon's VOL. III.

L

Scarce and Interesting Tracts, vol. iii. In 1715 Sergeant Comyns having refused to take the oath of qualification, the House determined that the votes given to him were lost, and gave the seat to the candidate who stood next on the poll; and in 1727 they adopted a similar course in a case where the elected person being a Commissioner of Customs was disqualified. In both of these cases however, there was a statutory disqualification.-See Belsham's Hist. of George III. i. 242–243.

Parliament.' The cause of the expulsion was thus cited, and it was a cause which might possibly justify the exclusion. The resolution incapacitating Wilkes assigned no reason except his expulsion by the House. The resolution incapacitating Walpole was passed at the petition of the rival candidate, but the House refused to give that candidate the seat, and no member sat for the borough of Lynn till after the dissolution. The House of Commons of George III. pronounced the candidate who had the smaller number of votes to be member for Middlesex. It was added that the Whig doctrine that the resolution of one House cannot create a disability, was maintained by no one more clearly than by Blackstone himself, who in his own 'Commentaries' had declared that to be capable of election to Parliament was the common right of all British subjects, and who had given a full enumeration of the legal incapacities which alone could bar this right.'

When the subject passed into the House of Lords, however, it was argued on somewhat different grounds, and the Government rallied chiefly upon a doctrine which was propounded by Lord Mansfield in a speech of extraordinary subtlety and power. He began by positively refusing to express any opinion about the legality of the decision which had been arrived at by the House of Commons. My sentiments about it,' he said, 'are locked in my own breast and shall die with me.' He would only say that whenever the statute law is silent he knew not where to look for the law of Parliament except in the proceedings and decisions of each House respectively.' He added that declarations of law made by either House of Parliament had always bad effects, for they had the semblance of legislative acts whereas they had no real legal force or validity. If either House as a legislative body thought fit to declare a particular doctrine to be law, he as a judge would pay no attention whatever to its declaration. But though the House of Commons had no power of laying down authoritatively general principles of law, it had a legal right of trying and deciding particular cases without appeal. Each House was not only a legislative assembly, it was also a judicial body, supreme in its own pro

The passage was altered in later editions.

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vince, and all questions touching the seats of the Lower House could be decided by that House alone. Its decision was final, for there was no other court in which they could be tried. The judges might be corrupt, the sentences might be erroneous, but the determination must be received and submitted to as the law of the land, for no existing body was competent to question or reverse it. The law might no doubt be changed by an Act of Parliament, in which of course the Lower House must concur, but as long as it was not changed, the judicial decision of the Commons on a question touching elections to their House was absolute and final. If they determined wilfully wrong it was iniquitous indeed, and in the highest degree detestable; but it was a crime of which no human tribunal could take cognisance, and it lay between God and their conscience.' By the constitution of the country the House of Lords had no right to offer any advice to the Sovereign on the subject or in any way to discuss, question, or impugn the judgment of the House of Commons on a matter which lay within the proper judicial province of that body.

The speech of Chatham in reply to these arguments was one of his greatest efforts, and considering the subtlety and delicacy of the distinctions discussed it gives a very high idea of his power, not only as an orator, but also as a political thinker and as a debater. The danger, indeed, of the doctrine of Mansfield was of the gravest kind. What limit could be put to the usurpations of a body which was itself the sole judge of its own privileges, which, by asserting in a judicial proceeding a power beyond the law, could establish that power without appeal, and was thus able under pretence of declaring the law to make the law? Every judicial body must indeed be vested with the powers and privileges necessary for performing the office for which it is appointed, but no court of justice can have a power inconsistent with or paramount to the known laws of the land. The representatives of the people were the trustees of the people, receiving from the people certain defined powers, and they could not abuse those powers more grossly than when they extended them beyond the limits of the law for the purpose of invading the rights of those from whom they were derived. That which distinguishes constitutional government

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from blank despotism is that no individual or corporation within it is above the law. This was the meaning of the great conflict of the Revolution, when the doctrine of passive obedience was exploded, when our kings were obliged to confess that their title to the throne and the rule of their government had no other foundation than the known law of the land. But now this doctrine of passive obedience and of a power beyond the law was revived in favour of what was called the popular branch of the Legislature. What is this mysterious power undefined by law, unknown to the subject, which we must not approach without awe or speak of without reverence, which no man may question, but which all men must obey?' It is evident that it contained a germ of tyranny fatal to the very idea of constitutional government, and that it would make the House of Commons much less the representative than the ruler of the people. It was said that the Lords had no right to interfere even by the expression of an opinion. On the contrary, to do so was their bounden duty. As mediators between the King and the people it was for them to submit to the King the causes of the discontents of his people. As one of the three powers whose concurrence was necessary to every change of law, it was for them to protest when the law had been virtually changed without their assent. As hereditary guardians of the British constitution, descendants of the barons who had extorted the Great Charter, it was for them to sound the warning when the constitution was invaded. Where law ends, tyranny begins.' The attempt of one branch of the Legislature to pass beyond the limits that were assigned to it, and to place itself in the discharge of any of its functions above the law of the land, is an act of revolution, an act of treason against the constitution. The House of Commons, by confusing the province of jurisdiction with that of legislation, by asserting what was virtually a sole power of altering or making the law, by invading the chartered rights which lay at the very heart of British liberty, had been guilty of such an act. The particular instance might appear to some of little moment, but the claim which was advanced extended to a complete subversion of the Constitution. If no other power might even protest against the decision of the House of Commons on any matter relating